Did Robin Thicke steal ‘Blurred Lines’ from Marvin Gaye?

The case has now been resolved, and the jury found in the Gayes’ favour, despite the copying not being exact and the musical elements dissimilar, as my original February 2014 post (below) argues. In an interview with the Hollywood Reporter, Richard Busch, the Gaye family lawyer, describes how the Thicke side’s hubris and inconsistency contributed to the jury verdict going against them – but insists that the case was successful because of the characteristics of the music itself. For those who have said that this sets a dangerous precedent for creators (including me – see this MTV news interview), this may be so in terms of discouraging musical homage in arrangements. But in (US) legal terms, a jury ruling is different from a court ruling, so each case is judged on its merits and on the specific evidence presented. Therefore this settlement does not represent ‘case law’ (as attorney Brian D Caplan points out in the same MTV feature) but it has certainly made some creators rather uncertain about their future songwriting and producing practices… [JB]

[original post from February 2014 follows]

There’s been a lot of media interest in the recently-resolved dispute over the alleged similarity between Robin Thicke’s ‘Blurred Lines’ (2013) and Marvin Gaye’s ‘Got To Give It Up’ (1977). The press release that started it was written by the Gaye family’s representatives King and Ballow, so the section I quote below is obviously accusatory, and the ‘evidence’ it cites appears to be based on lay listener opinion:

The “Blurred Lines” trio rushed to file their case soon after their song began attracting overwhelming attention from critics and fans about the substantial similarities that surpass the realm of coincidence to “Got to Give it Up.” On August 8, 2013 Rob Hoerburger in the New York Times wrote “But what I keep coming back to is the song’s choice DNA… And that bass line came right from Marvin Gaye’s No. 1 hit from the summer of ’77, ‘Got to Give It Up’.” In the August 23, 2013 issue of Rolling StoneMagazine, Contributor DavidRitz wrote, “When I first heard Robin Thicke’s ‘Blurred Lines,’ my reaction was the same as millions of other R&B fans: Hey, that’s Marvin Gaye’s “Got to Give It Up.” Thicke and company not only copped [sic] Gaye’s distinct bass line, but the defining funk of the cowbell accents. I wasn’t entirely surprised, since some years earlier Thicke’s ‘Love After War’ was a virtual lift of Marvin’s ‘After the Dance’ …” A quick review of the internet reveals these comments are far from alone in this respect.

Here’s a Spotify playlist and a YouTube comparison – listen for yourself.

——–

Here are the facts:

Blurred Lines is 120 beats per minute.

Got To Give It Up is 122 beats per minute.

Both songs feature a syncopated cowbell part and an electric piano (Gaye’s bassline is actually played on a 1976 RMI harmonic synthesiser).

The vocal melodies and lyrics of the songs are very obviously different from one another.

The songs have different chord patterns from each other.

The recordings are in different keys; ‘Blurred Lines’ is in G; ‘Got To Give It Up’ is in A.

The two basslines are transcribed below. I’ve transposed ‘Blurred Lines’ into the same key as ‘Got To Give It Up’ here for ease of comparison, and notated them in A minor (no sharps or flats) partly for simplicity and partly because both basslines are built on notes of the home key’s minor pentatonic scale. This ‘normalisation’ is intended to highlight any similarities that might otherwise be disguised by transcribing ‘Blurred Lines’ in the original key – that is, I’m giving Gaye’s side the best possible chance of proving their assertion that the bassline has been copied.

Got To Give It Up (Marvin Gaye) – transcribed from bar 5 [0:14]. This bassline employs substantial rhythmic variations throughout the song.

Blurred Lines (Robin Thicke). This 8-bar bass line is looped throughout the song.

When compared note for note like this, the dissimilarity is obvious. These basslines use different notes, rhythms and phrasing from each other. They’re even taken from different musical scales. Thicke’s bass notes are all taken from the mixolydian mode; the Gaye bassline is based around the pentatonic minor scale.

Now let’s look at that cowbell. Gaye uses the following cowbell riff, which plays pretty consistently through the track.

Got To Give It Up (Marvin Gaye) – 2-bar cowbell loop

.

Thicke’s song has more cowbell. I’ve notated both parts below. The upper one (panned right in the mix) plays a specific pattern, with a different rhythm from the Gaye song; the lower one (panned left) plays an off-beat, like a reggae ‘skank guitar’ groove. The lower one drops in and out periodically during the track.

Thicke’s cowbells (actually a cowbell and another percussion instrument that sounds to me more like an electronic clave) syncopate on the 16th notes (a semiquaver groove); Gaye’s song is very clearly an 8 groove. The only similarity is that each riff plays the first three 8th notes (quavers) of the bar.

———–

So, those are the facts, at least regarding compositional note choices. Now let’s get back to the first accusation in the press release:

Thicke and company not only [copied] Gaye’s distinct bass line…

If this is true, and Thicke’s team actually ‘copied the bass line’, then they changed most of the pitches, moved lots of notes around, and deleted some notes. Or put another way, they wrote an original bassline.

[Thicke has copied] the defining funk of the cowbell accents.

What exactly is ‘the defining funk’? Most of the accents in ‘Blurred Lines’ do not appear on the same beats of the bar as in the Gaye song, which by any reasonable rhythmic definition makes them different accents. Or put another way, they are an original compositional idea.

So if the note-to-note musical dissimilarities are so obvious, why did this press release bother to accuse Thicke et al of plagiarism? Clearly Gaye’s family thought they had a case. I think the reason is that the tracks do sound similar. Indeed, I don’t doubt Thicke’s production team deliberately used ‘Got To Give It Up’ as a style template to create the sound and feel of ‘Blurred Lines’. The instrumentation and tempos are pretty much the same, and there are many notable arrangement decisions in the Gaye song (for example, playing the bassline on an electric piano) that occur in ‘Blurred Lines’. In fact, Thicke himself stated publicly in a GQ interview that his team wrote ‘Blurred Lines’ using ‘Got To Give It Up’ as inspiration:

Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s “Got to Give It Up.” I was like, “Damn, we should make something like that, something with that groove.” Then he started playing a little something and we literally wrote the song in about a half hour and recorded it. The whole thing was done in a couple hours…

The RMI harmonic synthesiser, on which Marvin Gaye played the bassline for ‘Got To Give It Up.’

So how did this situation get so out of hand when it was clear from the start that these compositions use different notes and rhythms from each other? I think the answer lies in the fact that there is a difference between the concept of the song and the sound recording of the song. Listeners hear the song and the sound recording simultaneously, but music industry admin requires the song and the sound recording to be treated separately (because they are separate copyrights). The Gaye and Thicke recordings sound very similar to each other, but they use different notes, so it would be difficult to make a case that the composition has been plagiarised. And of course, Blurred Lines does not sample any of the audio from Gaye’s 1977 sound recording.

So to make a successful accusation of copyright infringement, Gaye’s side would have had to argue that the production ‘feel’ (or as the King and Ballow press release puts it, ‘choice DNA’) of ‘Got To Give It Up’ could attract copyright. Any legal action would probably have required the court (with the help of musicologists) to define exactly how this ‘choice DNA’ manifested itself in the recording, in order to discuss similarities. The act of putting an electric piano together with a cowbell and a 120BPM disco beat would need to have been judged a creative act in itself, making instrumentation and possibly even genre into protectable Intellectual Property. Which would have had massive implications for future creators of music.

I’m off now. My Delorean is heading to 1885, which is when I invented the snare drum backbeat.

Comments

The best article I have seen so far on this – Thanks for your insight.
I suppose we have to actually wait for the judges ruling before we know exactly WHY it was ruled in the favour of the Gaye estate but a couple of immediate thoughts spring to mind.
1. IF the song was inspired but not a direct rip off it opens up a whole can of worms- how many “soundalike” advertising tracks are obviously inspired copies of original songs but changed just enough to avoid “infringement” and licensing fees of the original song , and so what does that mean going forward ?
2. Every band I can think of has said at one time they’ve been inspired or influenced by another artist ? Does this mean any song inspired by another will now have to credit, and compensate the original writer ? How far back will this go ? the Stones were inspired for instance by blah blah … How many bands have been inspired by the Stones ? etc etc –
3. Where does now copyright end and where does it begin-Does it now need a rethink ? its clear that both tracks (not melody and lyrics) have a similar feel , but Im sure if one looks hard enough there are hundreds of other songs with similar drum beats and bass lines and feel too.
4. Recent parody law change now means thats its ok for a song to be parodied and not claim copyright – but now following this judgement its not ok for a song to be inspired by another one – seems odd to me.

I agree Michelle. It is an excellent article on the subject which I find very interesting… because of the impact it will have on copyright in general. To me, this raises issues and questions across all types of genres of art/media/music etc.

If I was to paint, for example, a spooky castle… and someone else came along and painted a very similar spooky castle, after being inspired by my art work,.. Should I consider myself entitled to some of the proceeds of it’s sale, even though it is different? What defines the similarities? How many similarities should an author look for in another novel of a similar genre, before they cry infringement? Should the descendents of Bram Stoker be looking for royalties on every Vampire book that has been written since? (assuming he was the first)

Rock and Roll of the 50’s was inspired by something that proceeded it. Should all Rock and Roll, and that familiar baseline that is in so much of it, be paying financial homage to an original creator? And finally, if Blurred Lines was never created, would the original song continued to have made money? Has Blurred Line prevented the Marvin Gaye song from making sales? I am very interested in how this plays out.

I didn’t realise till now, that the commercially released song of “Got to give it up” by Marvin Gaye is not owned by the Gayes. It is owned by Motown. The Gayes only had the rights to the composition of the song. That being the sheet music. So.. it really comes as a huge surprise that they won this case.

GIVING IT UP
In the lyric, Marvin turned the tune’s focus from himself to the image of a dancing woman, urging her to keep on moving, to shout, to get down, to get “funky.” Earlier in 1976, Johnnie Taylor’s “Disco Lady” was a huge hit, considerably influencing Gaye. “I love the way Johnnie sings, and I thought it was a fabulous song,” Gaye said. “As good as disco ever got. I appreciated the picture of the super-sexy woman on the dance floor, though in my version, I tried to give it a little twist.”

Thicke ‘stole’ Blurred Lines from Gaye. Just like Vanilla Ice stole Under Pressure from Queen.
I mean, why not just seek permissions to use a sample of the original work? Why bs by changing the bpm/key slightly or whatever? There’s no way that his entire production company didn’t know that they were basically fudging up a Marvin Gaye song “Just enough” to avoid legal repercussions (or so they thought).
Is it that hard to come up with something original? Heaven forbid he (Thicke) should have to come up with a completely new set of pretty noises for us to pay him millions to listen to.
.

Thing is… they didn’t sample anything. They copied nothing. They didn’t “change” things around. They created a song with the same feel. Whether or not people like RT, he and Pharrell made a hit, inspired by Marvin. Inspiration can’t be copyrighted.

yes, it’s a pretty ludicrous argument. by that logic you could say countless punk rock songs are the same song, countless hip-hop songs, countless reggae songs. just having a somewhat similar feel and arrangement has never been enough to be a copyright violation in the past and it opens up a whole can of worms. it just doesn’t really make any sense.

there are no samples & the melody/lyrics are entirely different. how can it be a copyright violation?

No one said that it is “accidental” that BL places you in the mindset of GTGIU. It’s meant to give you the good vibe that Marvin’s song did back in the day. The trouble is people are confusing a feeling with actual musical theory. NONE of the bass line is lifted, sampled or what-have-you. NONE of the cowbell is close. Chord patterns… no, they are not the same. Unlike, say, Michael Jackson’s “Billie Jean” and Billy Ocean’s “Caribbean Queen”, or your Vanilla Ice/Queen example, this is a “groove” thing. You can’t copyright a groove. If that’s the case, Sharon Jones’s career is OVER. NOTHING was stolen. NO PART of that song was sampled/fudged to be made to sound different. The jury got it completely wrong.

This is EXACTLY why laypersons who don’t read music should qualify for jury service when the composition is at issue. Sure, average ears may be able to detect the use of sampling, but this here is a issue of music theory.

Music theory is one thing. I get that being inspired by someones music and stealing from someone are two different things. But if I take someones cat, without permission, and rename them/paint them a different color it’s still stealing. They had heard that Marvin Gaye song before, just like everyone on the face of the planet- and thought it was cool or whatever. So they tried to change it enough that they wouldn’t have to pay any royalties to Gaye’s family. It didn’t work.
It would be one thing if they were sitting down and RANDOMLY COMPOSED the exact same song, but come on, he obviously didn’t. Are all of you people born yesterday?
Or are you defending the right to basically steal someone elses intellectual property?

I think you’re proving T-Squared Kent’s point, although I imagine that he means “should NOT qualify”. The article makes it very clear that in a technical sense, the two songs are not the same, but only to someone who has technical expertise (I majored in music theory). It is nothing at all like taking a car and repainting it. It would be more like taking a car and replacing all the parts with parts of varying similarity, from very similar (the instrumentation) to not very similar (the words and bass line) — as long as you didn’t take the car in the first place, but just saw it sitting in your neighbor’s yard and decided you wanted to build something similar.

@T-Square: I would counter-argue that technical issues have always been an issue for juries of laymen, and lawyers have struggled with both sides of the issue. For instance, it was very difficult to get convictions on DNA evidence when it first appeared in the courtroom because juries didn’t understand it, and it was difficult for lawyers to explain it to them convincingly enough for them to vote guilty based on a technical issue. Now it works contrariwise – juries, still not understanding how DNA evidence works, are likely to convict on faulty or misrepresented evidence because the layperson has built up an inherent trust of DNA matching.

Thanks for the great article Joe! I think Nomme makes a great point. While this case didn’t meet the technical requirements for infringement of the composition, it seems to set a more common-sense precedent (as judges sometimes do) with regard to infringement. Namely, that if a songwriter/producer admits to starting out with the intention of re-creating a certain song’s sound/vibe and uses almost the exact same instrumentation to do so, then they cannot simply try to “change just enough” to avoid technical infringement — rather, they should reach out to the original authors for permission and grant them a percentage of the publishing.

As a trained composer and working songwriter, I understand how this will potentially be a bad thing for music creators. But there is a positive side too, especially considering that it’s only worth it to pursue cases like this if a song’s royalties amount to hundreds of thousands if not millions of dollars, as good lawyers will charge around $20k just to initiate a case like this. It’s well-known in the industry that many of the biggest pop producers in the world use this type of model for nearly every song (copy the vibe and chords from a minor hit from the 70s/80s/90s, change just enough to avoid technical infringement, write a new topline and throw it on the radio). So maybe those types and the label/publishing A&Rs surrounding them will think a bit harder before simply re-purposing other’s work in the future, and in turn we’ll hear a bit more originality on the airwaves.

This is a good example of why you shouldn’t on the jury for a case like this because your analogy is false.

If they actually used a SAMPLE from the song without permission, then your analogy would work,but they didn’t use a sample, they made music in its likeness. Robin admitted he wanted to go for that vibe so it’s not a coincidence, but the fact is is that they didn’t sample the song.

To make your analogy more accurate, it would be more akin to breeding a cat to look alot like Gayes cat.
And for the record i think robin and Pharrell can blow me.
RTFA

By Christ.. they are right !
I was just listening to Metallica and the rolling stones side by side.
in both groups there is a guy playing guitar and another guy singing and another guy playing drums, Surely metallica have copied the stones by doing this ? Sure they have changed the way it sounds by changing the sequence and structure of the notes and beats, But its still got the “feel and vibe” of rock music which the stones invented🙂

Dear Nomme. They didn’t steal a car and repaint it and call it theirs. They built a whole new car which looked like and felt like the other car but wasn’t the other car. This car that they built used some of the same types of materiel as the original but is in fact a wholly new creation. So does that mean that this cars owner needs to pay the old cars owner money for making a car that looks similar but is not the same? The Gaye family are just greedy shits who want to get paid for something they didn’t work on and had nothing to do with

Expert witnesses are frequently called on in technology cases involving copyright infringement of software code. Analyses are presented in court comparing the source code, and expert opinions are given. My *impression* is that this doesn’t happen nearly enough in cases like this, where analyses like yours could be presented as evidence of sufficient originality.

Thanks for this article!!! Now they also sued him for After the Dance vs Love at War. Try analyzing that one. Only similarity is the chord progress really. Sounds like any boy band song ever. Both cases are ridiculous.

Beautiful! I love the breakdown and will be sharing this across all SoMe Channels! Cannot believe they lost in court. I hate Blurred Lines but the Marvin Gaye Estate looked a little too hard to find any similarities. It’s like saying any song with a cowbell played using eighth and quarter notes is copying Got To Give It Up.

They did, no doubt; but they had to convince a jury of laymen. This is a technical issue, and can only be judged fairly by the technically trained. And I cannot imagine a musician who would ever agree that this is plagiarism.

This is a great analysis. But to be fair, there’s a reason why the prosecutions claims are rather “non-musical” and are essentially based on “listener feel”. If they claimed Thicke’s song plagiarized song elements “note for note”, there would be no case – as shown in your article, not one melody or rhythm is copied exactly and so the legal strategy would be unsuccessful. Also, if one chooses to plagiarize something, he/she would be foolish to knowingly submit a replica of any existing song or song parts; minor differences are to be expected just so the artist could claim “nope! mine’s different! see I do this note here instead of this!”. However, these minor changes shouldn’t change the plagiarism level of the song from 100% to 0%. Instead, it would be slightly reduced, say 90%. It should be stated that while the parts you compare are not identical, they are highly correlated.

Oh yea and the E string gauge on the bass was a 105 instead of a 115. Give It Up (pun intended). Everyone knows it was a total rip off no matter how much music theory and circle of fifths you would like throw in here. Ears can hear.

In a murder trial, forensic evidence (such as DNA or fingerprints) is used and the jury relies on these indisputable facts to prove that the correct judgement is made. In music and lyrics, it is the notated and written symbols we use that prove whether a melody and lyric have been infringed upon. Since you cannot copyright a groove, and since the only copyrightable elements are melody/harmony and lyric, how can this verdict have been made? Since both the music and lyrics of “Blurred Lines” is different than Marvin Gaye’s song. there should have been no suit. This is the most dangerous and stupid copyright verdict ever made.

You can capture the feel or mood of a song or artist’s style without going just short of sampling the original track…..For example…..for years I’ve had people ask me if I played on Curtis Mayfield’s “Be Thankful for What You’ve Got”…..”Diamond in the back, sunroof top, diggin’ the scene with a gangster lean”…..that song. One problem……that’s NOT Curtis, it’s William DeVaughn but it SOUNDS like something Curtis could’ve done. More recently, John Meyer did a song “Waiting For The World To Change” that is so much in the style of Curtis that I checked to see if it was something Curt previously unreleased….and I was Curtom Records studio drummer for years. “Blurred Lines” was not “in the style of Marvin Gaye.”…..it was a rip of Got To Give It Up….and isn’t the only one on the project. If you desire a more definitive “rip off” on the Thicke project, I suggest you compare his “Million Dollar Baby” to MG’s “Trouble Man.” THAT was the lawsuit I was sure would happen.

If you’re a drummer and you actually think that one is a ripoff of the other, then you either suck, or you are just fooling yourself. The beats are similar. Not the same. Not a ripoff. If you learned how to play them both you would think they were as similar as any two other basic funk/disco beats.

Or any two bossa nova beats. Or any two jazz/swing beats. Or any two samba beats.

Need I go on? If you really are a drummer, didn’t you, just like me, run through exhaustive lists of different basic beats in different styles? Please, tell me how you can “rip off” such a generic and simplistic beat?

It might just be that the person sees a resemblance to a particular genre that the person doesn’t know many representatives of. When I asked him if he noticed the similarity of the pair of pieces of music I mentioned upthread, a friend said maybe it was just that style of music. That could well be, because lately I’ve been listening to a lot more music than I did in the days the Cars recorded that, so I’m picking out that one piece because I don’t have many of that type in mind to recall.

To me, it seems like Thicke & Pharrell didn’t behave like they should, being the top artists they are. They should have assessed themselves that the song was too similar to their source of inspiration and therefore ‘unloyal’ to Marvin. They should have adapted their idea until it was really theirs.

Reblogged this on Adam Flanagan and commented:
This proves how much nonesense the court case has been between Pharrell Williams and the Marvin Gaye estate in regards to Blurred Lines. These are not good times if people can be sued for being groovy!

The judge and jury members aren’t musicians and don’t understand the difference between a song and an arrangement. If anything, the arranger of the song should get the money, not the Marvin Gaye heirs…

If someone could clarify that would be great. I always thought that artists cannot copyright rhythms/chord progressions? So even if the cowbell was the same and the song was in the same key it would be irrelevant?

As for the baseline I thought that the melody would have to share a certain amount of notes/phrasing. E.g. The first 8 notes of the melody are the same and have same rhythmic feel?

Yes, what you state has been the law; only melody & lyrics can be copyrighted. That’s why this verdict is so concerning. It defines song copyright in a far wider way than it has been previously defined. It opens up the possibility for many more absurd lawsuits like this one. There must be many lawyers licking their lips at this result and looking for more hit songs that sound vaguely like other songs (and there are countless…)

I thin you’re missing some stuff about the law here. My understanding is that ONLY the sheet music for the versus is covered under copyright law– the cowbell (percussion) to me is exactly the same in both songs (to the laymen’s ear), but it isn’t protected by copyright law.

As someone who is technically trained in music theory, the issue is a far from clear. The transcriptions this article uses misrepresent the relationship between the two bass lines. As we hear in the first few measures of the Marvin Gaye the baseline has remarkable similarity to the Robin Thicke. The basic pattern is beat rest pickup and I would presume that the Blurred Lines bass was written copying that schematic particularly given the quotes given by Thicke and Williams. The choice to combine that with a syncopated cowbell rhythm, near identical instrumentation and similar vocal style… That sounds a lot like they were copying to me. Just because they aren’t very good at being accurate to the original shouldn’t mean the intention and result don’t constitute a breach of good ethics.

All of you are speaking about money, ownership, stealing … As if music was only some moneymaker.
What about classical, blues and jazz heritage that rely on immitation.
You see law issues when I see ethical. If the law, for money purpose, prevent us from immitate, we lose our main mode of learning and transmitting our culture.
No blues, no jazz, no soul, no funk, no hiphop and so on…

When you listen to Charlie Parker or his descendants, you can hear exactly which artist he or they copied in their learning, sometimes quoting distincly one guy or another.
Until a certain point, this process is essential and can’t be ignored.

Then, if an artist choses deliberately to deeply copy another, it could point out a one-time lack of creativity, but also a tribute to an artist aswell as a mean to give the new generation a bridge to an old culture ( like hiphop sampling doing that wonderfully ).

Eventually, he admitted himself being inspired by this song because he loves it. Damn, I would like to be pursued because my creations are too similirar with my master’s one.

I’m very geared toward noticing patterns & similarities, in music no less than elsewhere. These 2 pieces don’t even sound similar to me. They mash up very well, but that just means they’re complementary.

If cases like this set the standard now, it’s…nuts. Here are a couple pieces I’ve been telling people I hear that one must be a wink or unstated tribute to the other:

But the similarity isn’t in any element I considered copyrightable, just in the overall feel — and I love stuff like that. Under the standard of this case, I’m afraid one could never produce music with evocative elements like the ones I find so charming.

For that matter, one thing I loved about the TV serial “Lost” was that it’s in effect a mashup of several previous mystery plots, some of which are from stories in the public domain (from A.C. Doyle), but others from stories still under copyright (ITV series “Department S”). Fortunately copyright is to protect literary expression, i.e. HOW one tells a story, not the bare bones of the plot itself.

You didn’t even get the Marvin Gaye bass line right in your transcription (the fourth bar is messed up). But that’s not the point. The point is that it’s such a waste of time. The basic faulty supposition is that THIS kind of musical notation (which has nothing to do with the way this music was written, recorded, or transmitted) is gonna give you a quantitative insight into whether two songs are “similar” or not, as if similarity was based on quantitative measure like two molecular compounds. Music doesn’t work that way, and certainly not “GROOVE.” Similarities (or even IDENTITIES) in groove and feel are not going to show up in this notation system…But if you are going to try it, at least get the bass transcription right (and start your transcription on the right part of the phrase)

I’m so tired of this kind of fake show of authority & as-if empirical objectivity just by translating this into musical notation…it’s completely artificial because this isn’t classical music! This notation is one description of the sound…it’s not the sound itself

Thanks for pointing out the transcription error in bar 4. Please feel free to send me any amendments – as an academic I’m always happy to be corrected if I make a minor slip-up like this.

You’re absolutely right that popular music is not built from the notation upwards, nor is it received via a score, and this is a much-discussed issue in contemporary popular musicology. Philip Tagg – http://tagg.org/index.html – is particularly passionate about this. However, clef-based transcription is still one of the most common tools that musicologists use to discuss composition in cases such as this. Personally I agree that music analysis should come from the audio and from the listener’s experience – but there are many subjective methodological challenges in doing this, and they don’t necessarily enable separation of the compositional elements from the sound recording, which is a requirement in cases like this where the sound recording and composition copyrights are separately owned.

For further reading on this complex issue I’d also recommend Allan Moore’s excellent book Song Means (2012).

Thanks for your response and for the source recommendation. As you can see I am passionate about the matter too. What’s really frustrating is when fuzzy legal codes & conventions are treated as if they actually reflected any real fact of the matter about whether two or more songs/performances are similar or not (assuming that there is such a fact of the matter to begin with). I totally agree with your distinction between the song and the recording. The problem of the “ontological status” of music is itself an oldie and a goodie and it seems awful sad that it’s now a matter of random legal categories. However what’s even more important — and this is my main comment on your article — is that the main issue here is NOT ontological in the slightest. It’s not about degrees of similarity and how much variation they put in “Blurred Lines” to try to avoid being sued. I think what’s more relevant to this case is how many generations of black music innovators died in poverty after having been systematically imitated/stolen from by white singers who became millionaires. To not have that historical fact affect your choices as a superstar musician or as a critic is a real mistake. So imitation,allusion, playful quotation and the rest (which are of course the meat and potatoes of a healthy musical culture) just aren’t the same in this case as in other cases where we could just celebrate the long life of a bass line or a groove across the decades. That’s why I feel very uncomfortable with just “looking at the [notated] notes” and playing the fraction game to settle the question whether or not Robin Thicke is indebted to Marvin Gaye. He’ll tell you in a moment that he is, only he wants to pay homage in every way but materially? What is that about?

Boisson (2001)
original works broken down into their composite parts would usually be little more
than basic unprotectible elements like letters, colors and symbols.

( WW Note ; Just as letters, colors and symbols are part of the public domain..
so are musical notes.
Of course, when musical notes are combined into a particular arrangement, they are copyrightable,
just as non-copyrightable words can be combined to form a copyrightable poem (or novel, or essay, etc.).

[In the Folio Impressions case,] part of the plaintiff’s fabric was not original and therefore not protectable.
We articulated the need for an ordinary observer to be “more discerning” in such circumstances.
“The ordinary observer would compare the finished product that the fabric designs were intended to grace (women’s dresses),
and would be inclined to view the entire dress
— consisting of protectable and unprotectible elements — as one whole.
Here, since only some of the design enjoys copyright protection, the observer’s inspection must be more discerning.”
Shortly after Folio Impressions was decided, we reiterated that a “more refined analysis” is required
where a plaintiff’s work is not “wholly original,” but rather incorporates elements from the public domain.
In these instances, “what must be shown is substantial similarity between those elements,
and only those elements, that provide copyrightability to the allegedly infringed compilation.”

In giving the (jury) instructions, the judge will state the issues in the case and
define any terms or words that may not be familiar to the jurors.

” How Courts Work”
American Bar Association

This is a very important aspect because:

” The distinction between what is fair use and what is infringement
in a particular case will not always be clear or easily defined.
There is no specific number of words, lines, or notes that may safely be taken without permission.”
FL-102, Reviewed June 2012
U.S. Copyright Office
101 Independence Avenue SE
Washington, DC 20559-6000
(202) 707-3000

BELOW IS THE ONLY INSTRUCTION THAT WAS GIVEN TO THE JURY REGARDING
PROTECTABLE VS. UNPROTECTABLE ELEMENTS FROM THE PUBLIC DOMAIN.

INSTRUCTION NO. 37
An original work may include or incorporate elements taken from prior works,
works from the public domain or works owned by others, with the owner’s permission.

In modern popular music it is understandable that current artists are effectively midgets standing on the shoulders of giants in order to reach new heights… and some similarities are bound to appear in the new works so created. However, when it comes to the particulars and technicalities of copyright law, emotions (particularly envy and jealousy) are usually not well-suited to reaching a correct resolution (and that applies to the jury as well as the many public opinions that abound on this case).

To date, this “Blurred Lines” decision is the only copyright infringement lawsuit ever in which no specific melody, harmony, rhythm or lyrics were copied. The “that songs reminds me of another song” threshold would be a new legal standard. If this is the new threshold for copyright infringement, a lot of modern artists (like Bruno Mars) and 60s British artists (from the Beatles to Led Zeppelin) could be in trouble!

If the baseline and cowbell pattern create the copyrightable “defining funk” of the song then it stands to reason that the keyboardist and percussionist who created said parts are due millions in past royalties from the Gayes Estate as co-writers.

Grooves or “feels” can’t be copywritten otherwise Bo Diddley’s estate would be worth billions. Thicke & Co. set out to write a new song with the same “feel” as Got to Give It Up. They did that. They did it well, but they did not infringe on a copyright according to how the law is written today. Expect an appeal.

Trackbacks

[…] Like Kenny previously, Adam ends by asking ‘what about the money’? He notes that legal ramifications are more likely the more money there is. He concludes that not all practices are equally protected. There is a brief allusion at the end to the Robin Thicke/Marvin Gaye case [see my Robin Thicke blog post from earlier this year]. […]

[…] long story short, jurors found Thicke and Williams guilty.) You might be interested in musicologist Joe Bennett’s analysis and commentary on the issue. I’m more interested here in the public attention to forensic musicology than […]

[…] “Blurred Lines” is a 2013 pop song written by record producer Pharrell Williams, R&B singer Robin Thicke, and rapper T.I., but, as testimony in the copyright trial revealed, mostly by Williams, who has become a veritable hits maker in his career of 20+ years. The song does sound similar to “Got to Give it Up,” the 1977 Marvin Gaye disco hit. You can listen to a “mash up” here, which lines up and exploits some of the similarities. The important point is that many of the elements that give “Blurred Lines” and “Got to Give It Up” a similar “sound”—the cow bell, the keyboard, the falsetto—are not copyrighted. Gaye submitted only the sheet music for copyright, not because he didn’t have the foresight but because it would be ridiculous to claim ownership on musical elements that were in use long before Marvin Gaye entered the scene. The Gaye family’s original claim was that the bass line in “Blurred Lines” (totally different from the one in “Got to Give you Up”) and the “defining funk of the cowbell accents” were copied. They weren’t, as Joe Bennett explains. […]

[…] “Blurred Lines” is a 2013 pop song written by record producer Pharrell Williams, R&B singer Robin Thicke, and rapper T.I., but, as testimony in the copyright trial revealed, mostly by Williams, who has become a veritable hits maker in his career of 20+ years. The song does sound similar to “Got to Give it Up,” the 1977 Marvin Gaye disco hit. You can listen to a “mash up” here, which lines up and exploits some of the similarities. The important point is that many of the elements that give “Blurred Lines” and “Got to Give It Up” a similar “sound”—the cow bell, the keyboard, the falsetto—are not copyrighted. Gaye submitted only the sheet music for copyright, not because he didn’t have the foresight but because it would be ridiculous to claim ownership on musical elements that were in use long before Marvin Gaye entered the scene. The Gaye family’s original claim was that the bass line in “Blurred Lines” (totally different from the one in “Got to Give you Up”) and the “defining funk of the cowbell accents” were copied. They weren’t, as Joe Bennett explains. […]

[…] “Blurred Lines” is a 2013 pop song written by record producer Pharrell Williams, R&B singer Robin Thicke, and rapper T.I., but, as testimony in the copyright trial revealed, mostly by Williams, who has become a veritable hits maker in his career of 20+ years. The song does sound similar to “Got to Give it Up,” the 1977 Marvin Gaye disco hit. You can listen to a “mash up” here, which lines up and exploits some of the similarities. The important point is that many of the elements that give “Blurred Lines” and “Got to Give It Up” a similar “sound”—the cow bell, the keyboard, the falsetto—are not copyrighted. Gaye submitted only the sheet music for copyright, not because he didn’t have the foresight but because it would be ridiculous to claim ownership on musical elements that were in use long before Marvin Gaye entered the scene. The Gaye family’s original claim was that the bass line in “Blurred Lines” (totally different from the one in “Got to Give you Up”) and the “defining funk of the cowbell accents” were copied. They weren’t, as Joe Bennett explains. […]

[…] "Blurred Lines" is a 2013 pop song written by record producer Pharrell Williams, R&B singer Robin Thicke, and rapper T.I., but, as testimony in the copyright trial revealed, mostly by Williams, who has become a veritable hits maker in his career of 20+ years. The song does sound similar to "Got to Give it Up," the 1977 Marvin Gaye disco hit. You can listen to a "mash up" here, which lines up and exploits some of the similarities. The important point is that many of the elements that give "Blurred Lines" and "Got to Give It Up" a similar "sound"—the cow bell, the keyboard, the falsetto—are not copyrighted. Gaye submitted only the sheet music for copyright, not because he didn't have the foresight but because it would be ridiculous to claim ownership on musical elements that were in use long before Marvin Gaye entered the scene. The Gaye family's original claim was that the bass line in "Blurred Lines" (totally different from the one in "Got to Give you Up") and the "defining funk of the cowbell accents" were copied. They weren't, as Joe Bennett explains. […]

[…] “Blurred Lines” is a 2013 pop song written by record producer Pharrell Williams, R&B singer Robin Thicke, and rapper T.I., but, as testimony in the copyright trial revealed, mostly by Williams, who has become a veritable hits maker in his career of 20+ years. The song does sound similar to “Got to Give it Up,” the 1977 Marvin Gaye disco hit. You can listen to a “mash up” here, which lines up and exploits some of the similarities. The important point is that many of the elements that give “Blurred Lines” and “Got to Give It Up” a similar “sound”—the cow bell, the keyboard, the falsetto—are not copyrighted. Gaye submitted only the sheet music for copyright, not because he didn’t have the foresight but because it would be ridiculous to claim ownership on musical elements that were in use long before Marvin Gaye entered the scene. The Gaye family’s original claim was that the bass line in “Blurred Lines” (totally different from the one in “Got to Give you Up”) and the “defining funk of the cowbell accents” were copied. They weren’t, as Joe Bennett explains. […]

[…] Because “Blurred Lines” is not the same. Sure, the bassline is played on the same 70s keyboard, the drums have the same feel and the cowbell is reminiscent of Marvin Gaye’s “Got to Give it Up” but, on paper, if you score it (I mean musical score, not marks out of ten), they’re in fact, nowhere near. If you want a technical explanation (it’s called forensic musicology apparently) then read this: https://joebennett.net/2014/02/01/did-robin-thicke-steal-a-song-from-marvin-gaye/ […]

[…] family of Marvin Gaye $7.3 million. This is decision has upset people in the music industry, with Joe Bennet, Vulture, and BuzzFeed posting great explanations about why. When I was working in A&R, my […]

[…] MUSIC / LAW THING OF THE WEEK (3 min. read) What: Blurred Sounds Why: Because the ruling for Marvin Gaye’s Estate over Pharrell and Robin Thicke’s song Blurred Lines similarity to Got To Give It Up will have a profound impact on the music business going forward. Also, anyone who can read music would understand that they are not the same. […]

[…] The meat of the matter is this: Thicke and Williams heard a song they liked and decided to do something similar. The Gaye estate sued for infringement and won – despite the fact that the actual expressions in Got to Give it Up were not copied. […]

[…] In terms of the other elements of pitch and duration, like the bass line and the cowbell, it is easily proven how different they are simply by looking at the sheet music. This guy does exactly that, and very well too. […]

[…] don’t intend to discuss the “Blurred Lines” case in this post. There are plenty of folk already committing thoughts on the ruling. While the circumstances of the recent Thicke/Williams/Gaye case are not explicitly […]

[…] friend Joe Bennett analyzed some of the musical facts in his excellent blogpost which you can find here. Joe transcribed the bassline and cowbell parts of the ligitious tracks. This sheds some light on […]

[…] I know influence is now illegal. But what about descending basslines in A-minor? It’s not as if Mr. Wolfe invented them. Will the real descendants of Antonio Vivaldi please stand up? (Seriously, guys, I don’t care how you feel about Robin Thicke. But if you remain unconvinced that the “Blurred Lines” verdict was wrong, take a look at these transcriptions.) […]

[…] Often music copyright disputes are resolved quickly and quietly, but some of you may remember that recently there was very high profile case, involving Robin Thicke‘s song ‘Blurred Lines‘ and the family of Marvin Gaye, that made the news around the world. Joe wrote a fascinating piece about this, applying his considerable forensic skill to the case in this post on his website. […]

[…] Finally an outlier category: a song with a completely different melody, structure and lyrics, which nonetheless clearly recreates what you might term the “defining funk” of an earlier work. This seems near-impossible to define reasonably and probably shouldn’t be included in this continuum, I only mention it because it came up in the case of Robin Thicke’s Blurred Lines (excellently summarised and contextualised here), a song in which he inexplicably chooses to sing about his personal lurid musings on women and his cavalier approach to consent. A jury found that despite differing from Marvin Gaye’s Got To Give It Up in any musical sense, the defining funk had been “copied”. The actual musical similarities were excellently examined by Joe Bennett. […]